July 6, 2007

U.S. Circuit Judge Julia Smith Gibbons, one of the two Republican appointees who ruled against the plaintiffs, said they failed to show they were subject to the surveillance....

Although the Bush administration said in January the program is now overseen by a special federal intelligence court, opponents said that without a court order, the president could resume the spying outside judicial authority at any time. The Justice Department has said the case is moot.

You may remember that I was very critical of the district judge's decision, both on this blog...

It's hard to understand why a judge writing an opinion in such a high-profile case, dealing with such difficult law, would not put immense effort into creating an outward appearance of heavy scholarly effort and pristine neutrality. Does the judge lack the competence to do it? Does the judge have a hot feeling of righteousness and outrage about the case and also think it's good to show it? Perhaps it's some subtle combination of those two things.

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.

This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

ADDED, after reading the case: There are three opinions from each of the three judges on the 6th Circuit panel. In the main opinion, Judge Batchelder goes through all the claims separately, following the 3 parts of the injury-in-fact test for standing, but her basic position is made clear in her discussion of the First Amendment claim.

As she sees it, the plaintiffs alleged that they have a "subjective belief that the NSA might be intercepting their communications," and that, if this is occurring, it interferes with their professional obligation as journalists, academics, and lawyers to maintain confidentiality in their telephone communications. Even though the First Amendment takes account of the "chilling effect," Batchelder writes, plaintiffs can't satisfy the injury requirement with their own "purely speculative fears."

She relies heavily on the 1972 Supreme Court case Laird v. Tatum:

The Laird plaintiffs alleged that the Army surveillance program caused a chilling effect on their First Amendment rights in that they and others were reluctant to associate or communicate for fear of reprisal, stemming from their fear that the government would discover or had discovered them (and their activities) by way of the secret surveillance. The harm alleged in the present case is no more substantial; the plaintiffs allege a similar chilling effect on their First Amendment rights, in that they are bound by professional and ethical obligations to refrain from communicating with their overseas contacts due to their fear that the TSP surveillance will lead to discovery, exposure, and ultimately reprisal against those contacts or others. But unlike the Laird plaintiffs, the plaintiffs here do not assert that they personally anticipate or fear any direct reprisal by the United States government, or that the TSP data is being widely circulated or misused. Indeed, the district court stated that, to date, no one has been exposed or prosecuted based on information collected under the TSP. ACLU v. NSA, 438 F. Supp. 2d at 771.

The plaintiffs also attempted to say that they were injured because their overseas contacts might not want to talk to them. But the absence of a causal link between the injury and the NSA program -- the required second prong of the standing test -- would alone defeat the plaintiffs' standing.

Judge Gibbons concurs, deciding the standing question on a single, straightforward point: The plaintiffs failed to provide evidence that they have been subjected to the program, so they lack the injury needed to meet the constitutional standing test.

Gibbons is also straightforward in noting her disagreement with the dissenting Judge Gilman. Gilman relies on Friends of the Earth v. Laidlaw, a 2000 Supreme Court case that is rather generous in assessing the injury of plaintiffs who sued about pollution to a waterway near where they live. Gibbons says Laidlaw is different because the plaintiffs' proximity to the water was concrete and real (even if the pollutant was infinitesimal), whereas here, the plaintiffs can only guess that that the government is intercepting their calls.

That, in Gibbons' view, made their case more like Los Angeles v. Lyons, in which the Court denied standing to a man whose claimed injury was a fear that he'd be subjected to a police chokehold. The Laidlaw plaintiffs premised their injury on fear too, but the activity that they complained of physically impinged on them. (They were near the river.) Lyons was only worried that the activity might be directed at him. (Lyons had been choked in the past, and that made him more intensely fearful, but his failure to show he would be choked in the future meant he lacked standing to seek prospective relief.)

What Lyons, Laird, and Laidlaw really show, I think, is that the Supreme Court has wavered in how stringently it applies its own test. It is lenient about standing in environmental cases (as we saw again this Term in Massachusetts v. EPA, the case about global warming). By contrast, is tough in police brutality cases, like Lyons. If the standing test is to be applied according to context and not abstract principle, then Laird is the most relevant case. So I would expect the Supreme Court to agree with Batchelder and Gibbons.

But this doesn't mean that the dissenting judge is obviously wrong. Gilman thought fear was enough as long as it was reasonable and well-grounded. Focusing on the lawyers and relying on Laidlaw, he thought they'd done enough to make their fear sufficiently concrete: They showed that they are the sort of persons that the program seems designed to apply to. Isn't that enough like living near the river?

If we concede that there can be flexibility in the constitutional standing test -- and not everyone does -- we might want to use that flexibility and side with Gilman, so that it isn't impossible to challenge a secret program. The plaintiffs couldn't go any further than they did. The government will not let them see the evidence of whether the program was in fact applied to them, because it relies on the state secrets privilege. This is a frustrating bind, but why not resolve it in favor of empowering the court to address the merits of the case?

Do Batchelder and Gibbons convince us to resolve the bind in favor of the government that asserts the privilege? Batchelder arranges things so that the evidence behind the privilege supposedly doesn't matter. Apparently, what the plaintiffs don't know doesn't hurt them: The only injury they have – whether they are being spied on or not – is their fear that they are being spied on. Then -- how neat -- secretiveness avoids the injury.

Gibbons thinks it's important to admit the effect the privilege is having on the standing issue. But then she simply abides by the privilege. It excludes what it excludes, and the plaintiffs are stuck with the consequences. Then -- also neat -- their injury is insufficient because they didn't -- they couldn't! -- show that the program had been applied to them.

Naturally, Batchelder and Gibbons don't acknowledge that they feel a pull in the opposite direction from Gilman. Their context-sensitive response has to do -- I'm guessing -- with sympathy toward the interest in preserving the secrecy of the program and worry that the court's intrusion into this matter would have unpredictable negative consequences. I'd explain Laird and Lyons that way too. You may not like this sort of pragmatism in constitutional analysis, but you can't easily harmonize the case law without it.

So much for the injury requirement. Let's consider the second and third prongs of the standing test: causation and redresability.

There really is quite a problem with causation -- the requirement that the complained-of injury was caused by the defendants' actions. As Batchelder put it -- Gibbons avoided the issue -- the problem with causation is that the defendants' action was the failure to obtain a warrant, and since any absence of a warrant would be unknown to the defendant, it couldn't be the source of any disinclination to speak.

According to Batchelder:

The mere fact that the United States government is aggressively prosecuting a worldwide War on Terror — in which, by the plaintiffs’ own “well founded belief,” these contacts are likely suspects — would appear sufficient to chill these overseas contacts regardless of the absence of FISA protections.

Here's Gilman's response: "If the TSP did not exist, the attorney-plaintiffs would be protected by FISA’s minimization procedures and would have no reason to cease telephone or email communication with their international clients and contacts." No reason? Part of the political attack on the program has always been that the FISA requirements are not hard to meet. If so, following them would still leave the plaintiffs at risk.

One would think that Gilman should have had to say that the failure to adhere to FISA increased the chance that the calls would be intercepted or that there'd be less "minimization" of anything actually intercepted, so the program caused some increment of fear. But if you admitted that much, you'd have to go back and redo your injury analysis. Only that increment of fear could be used to satisfy the injury requirement.

On the third prong of the test, the plaintiffs needed to show that the relief they sought would cure the injury they complained of. The relief sought was a declaration that the program is illegal. In Batchelder's view, if the program were restructured, warrants would issue secretly, and the plaintiffs' fear would remain:

The only way to redress the injury would be to enjoin all wiretaps, even those for which warrants are issued and for which full prior notice is given to the parties being tapped. Only then would the plaintiffs be relieved of their fear that their contacts are likely under surveillance, the contacts be relieved of their fear of surveillance, and the parties be able to “freely engage in conversations and correspond via email without concern.”

The plaintiffs did not, of course, ask for such an absurdly broad remedy.

Gilman thinks redress could come simply from knowing that the minimization procedures of FISA would apply. He acknowledges that the challenged program might include a policy of nondisclosure of intercepted material, but since the plaintiffs don't know that, they'd get relief from knowing the government had to work within FISA. It is the very secrecy of the program, then, that inflicts injury on the plaintiffs, causing them to change their behavior, and what matters is the difference between the specific process outlined in FISA and the unknown program.

This is a fine but sharp point, and it may be enough to justify answering the precise question on the merits that Gilman goes on to address:

Without expressing an opinion concerning the analysis of the district court, I would affirm its judgment because I conclude that the TSP violates FISA and Title III and that the President does not have the inherent authority to act in disregard of those statutes. The clearest ground for deciding the merits of this appeal is the plaintiffs’ statutory claim, just as the clearest argument for standing is presented by the attorney-plaintiffs. This is not to say that the plaintiffs’ other causes of action lack merit, but simply that this case can, and therefore should, be decided on the narrowest grounds possible.

See the subtle but distinct disrespect he shows to the district judge? He declines to address her opinion at all. He relies wholly on the applicability of the two statutes, the "narrowest grounds possible" -- a restrained approach that he considered necessary. Recall that the district judge, Anna Diggs Taylor, romped through questions of First and Fourth Amendment law and separation of powers and did so without bothering to crank out the neutral-sounding verbiage that might help us believe she only did what the law compelled. Gilman's discussion is circumspect and judicial in tone. Unlike the district judge, he displays a proper sense of the role of a judge, and none of the criticisms I aimed at Judge Taylor in that NYT op-ed apply to him.

I think, in the end, the standing question is difficult in the way that it often is, and Gilman's resolution of the problem is typical of the liberal side of the Supreme Court. It's respectable, but likely to lose in the Court as now configured.

Enough for now. I know I haven't written about Gilman's opinion on the applicability of the statutes and the lack of inherent presidential authority to run free of the statutes. These are difficult questions, this post is way too long, and Saturday is begging for my attention.

Wait. Let's talk about the merits of the case. Last time, our ultra-left zealots were overjoyed because a judge had so properly exercised her judginess and put the administration in its constitutional place.

Here, we have a higher-level group of judges exercising judginess, and they have agreed with the administration.

Who said it's not critical? If the ruling was overturned for lack of standing, that's disappointing but not necessarily wrong.

The standing issue is a big one in getting secret government surveillance adjudicated in the courts... precisely because it's hard to establish you've been surveilled or that the surveillance has harmed you.

Nonetheless, electronic surveillance of Americans without a warrant is illegal, and needs to be stopped as soon as possible. If this is the end of the ACLU case, hopefully a better set of plaintiffs comes along soon.

And the "defenses" of the program that Ann thinks are so "serious" are actually ridiculous and wholly un-American.

let's talk about standing.... if someone is the target of warrantless super top secret domestic "spying" for lack of a better word.... there is very little chance that they would ever know about it.

does standing, as decided here, indicate that they would have had to be an injured party?

this smacks of the equal pay for equal work issues raised earlier last month... a finite time to "know and complain" about something that is probably very very hard to find out about and the similar thinking here.

I argued in the 2nd appt. court in nyc (fed) about 15 years ago as i had sued someone who almost to the day came under federal indictment for the criminal violations that i alledged in my civil action. the discovery trail dried up because the government had sucked the well dry. i argued that not being able to proceed with discovery due to the federal criminal action ... not being able to know the unknowable...(similar to here) had a draconian effect on my rights as a civil litigant.

sympathetic but no cigar.

interesting. I'm not unsympathetic to the overall notion but am kinda pissed that there is so much kneejerk secrecy.

As Doyle said, "precisely because it's hard to establish you've been surveilled or that the surveillance has harmed you."

If you don't even know that you have been surveiled and have a hard time showing harm--even if you were surveiled. It hard for me (or most people, I think) to get worked-up about it. Is there any actual harm, or is it all just that you don't like the idea that some govt. agent might listen into your frequent calls to Pakistan?

yes, i remember you writing about this opinion harping on the fact that Justice Anna Diggs Taylor referred to a Chief Justice as simply just a Justice. When Glen Greenwald called you out for doing the same thing in a previous New york Times Ed, its safe to say your affinity toward Glen declined precipitously. I think Glen also called you out for not reading the opinion as well, which was evident from your analysis.

Anyways, this Judge also found the program illegal, but reversed based on standing grounds.

On another note, your nephew might be playing with Tiger Woods tomorrow in Tiger Woods' tournament. They are both at -1.

Sorry, that's wrong. It's a crime to conduct electronic surveillance of except as authorized by statute (which, if there's even a probability you're going to be listening to U.S. persons, requires a court order).

The standing issue is a big one in getting secret government surveillance adjudicated in the courts... precisely because it's hard to establish you've been surveilled or that the surveillance has harmed you.

Yes, which is a good thing in that it prevents the leftists, or anyone else for that matter, from using lawsuits as bludgeons against lawful programs to suit their goals.

Nonetheless, electronic surveillance of Americans without a warrant is illegal, and needs to be stopped as soon as possible. If this is the end of the ACLU case, hopefully a better set of plaintiffs comes along soon.

Of course, but the administration argues that the only "domestic" component of their program is when a US citizen is in contact which others, possibly terrorists, on foreign soil. It was never "domestic" only.

The left, the Democrats and their willing accomplices in the MSM have mischaracterised the program from day one, hoping to get their "Watergate" moment. So, when the initial accusation is faulty or an outright lie, the arguements against the program are Strawmen.

Just because the ACLU and other leftists don't like it, doesn't mean it's unconstitutional.

the "defenses" of the program that Ann thinks are so "serious" are actually ridiculous and wholly un-American.

This will just make it harder for hdhouse to coordinate his "medical advice" from karachi and peshawar! Don't you see how it oppresses him? Next you'll be investigating his purhases of diesel, fertiliser, extra large propane tanks and renting an SUV!

Sorry, that's wrong. It's a crime to conduct electronic surveillance of except as authorized by statute (which, if there's even a probability you're going to be listening to U.S. persons, requires a court order).

You are 100% wrong. Read USSID 18, which is a part of NSA's directives for collecting COMINT. I used to work with it everyday. The last version I saw had been reviewed and approved by Janet Reno. We've been doing it for years when the situation demands it.

But Bush didn't try to do that. He said when the law was amended that he had all the flexibility he needed, and that when we're talking about surveillance of Americans "We're talkin' about getting a warrant."

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

I can't believe I'm getting criticized for not reading the case yet. It just came out and it's 60+ single-spaced pages! I wanted to get a post up to mark the news. Jeez. Criticizing me on this one is a blatant confession of unfairness. Lame!

Yes. If you are getting calls from suspected AQ cells overseas, the government must get tell a court as much and get a warrant.

Both sides are speaking almost orthagonally to each other.

1. We have the number of an AQ bad guy in South Kirkistan. The big NSA boxes sweep up all calls that number makes, whether the AQ guy is talking or not. He calls a number in Pakistan. we capture that call. 10 minutes later that number calls the US, we capture that call as well. legal.

2. The US wiretap laws including FISA are most often oriented on people, not numbers. It is generally illegal to wiretap known US persons (cits and legal resident aliens) in the US without a warrant. However in the example above, we were tracing a series of calls and had no knowledge of the status of or even the identity of any possible people covered by the laws within the US. Legal.

For those of us unclean souls who lack legal education and training, may I request that those offering legal opinions identify themselves as JDs or members of a bar in good standing, so I can separate the question of what the law IS versus what people think it is or wish it to be?

Doyle - you are going to have to do a lot better than providing a link to 50 USC 1809 to prove that the TSP is illegal.

First, you have to overcome the "intentionally" hurdle. The GS-5 clerk doing the recording, or more likely, the GS-12 programmer setting it up, are highly unlikely to know that the communications being surveilled is "electronic communications" under FISA. That kills "intentionally".

Second, as the opinion of the court pointed out, we just don't know if and when unwarranted interception of international calls into or out of this country are going on. This is esp. true, given the blanket types of warrants apparently approved by the FISC.

Finally, you totally ignore the Separation of Powers issue. In other words, you presuppose that Congress can impose this sort of limitations on the President's Article II power to protect the U.S. and to fight al Qaeda, et al.

I found esp. interesting the discussion by the Court about Title III v. FISA.

The Court seemed to say that the TSP was clearly not covered by Title III, but that it may also not qualify as Electronic Communications under FISA. In other words, slipping right between the two acts.

Now, notably, part of the problem with FISA is that the courts cannot really determine whether or not anyone has been surveilled, or if so, if it was subject to a warrant, due to the State Secrets privilege.

I also think that I would have been happier with the decision if it had hit the "unreasonable" prong of the 4th Amdt. analysis a bit harder. Is is unreasonable that the NSA is intercepting foreign and international electronic communications to and from al Qaeda, and their fellow travelers, after 9/11, and our continuing fight with them, in both Iraq and Afghanistan? I would suggest that it is not unreasonable.

I should note that with the reversal of this case, those, like Doyle who have been claiming, with little basis in fact, that the NSA TSP is illegal, have even less legal support than they had yesterday. As with much of what is claimed on the left, it is primarily a result of wishful thinking, and until those opposed to the War on Terror can get a case like this through the court system without getting it reversed, that is all they have for their claim that it is illegal - wishful thinking.

1) The Supreme Court of the United States ruled that the gathering of intelligence regarding foreign agents is part of the executive power, and does not require a warrant, whether inside or outside the United States.

2) Congress purported to make a law, FISA, prohibiting the exercise of that executive power within the U.S. except upon permission of the judiciary, inventing a new type of probable cause, invoking none of Congress's Art. I section 8 powers, and quite arguably violating the separation of powers.

3) The FISA Court of Review, established by that act of Congress, in its only case ever, mentioned that it was clear that FISA could not limit the exercise of the executive power established by the Supreme Court, it could only provide a parallel mechanism. (This non-binding commentary by judges who are, by necessity, experts on FISA and surveillance law, is apparently "ridiculous and wholly un-American," as determined by the great and revered legal scholar Doyle.)

4) Various people try to quote FISA as outlawing the exercise of executive authority to listen to the conversations of foreign agents, never addressing the question of the constitutionality of FISA's prohibition.

5) Such persons include a district court judge who, breaking stare decis, also went ahead and said that the actions declared legal by the Supreme Court were unconstitutional even if FISA hadn't been around, and who decided not to let the litigant's lack of standing get in the way of her efforts to declare what the law was.

6) A court of appeal tosses the judge's overreach on the most economical ground available.

Also, we have no way of knowing if the Bush Command has abused this power.

WE have the warning from Mr John Diiulio:

"What you've got is everything -- and I mean everything -- being run by the political arm. It's the reign of the Mayberry Machiavellis."

Does anyone have confidence that Karl Rove would keep his hands off wiretapping? Add to that the abuse of National Security letters leaked a few weeks back and it's a worrisome prospect, with no checks or balances.

Althouse did not follow this case and had no idea what happened in it. She formed her views about the court's ruling and then proceeded to express them loudly and publicly without bothering to do the smallest amount of work which would be necessary for forming a responsible opinion -- including even reviewing what the DoJ argued here or finding out what happened previously in this case (she even aggressively criticized the court's opinion while admitting that she only had time to "skim it"). Even after that, it is clear that she just read the opinion and then spat up some trite political slogans attacking the court, exhibiting precisely the intellectual sloth and undisciplined approach of which she thinks she is qualified to accuse Judge Taylor.

As with much of what is claimed on the left, it is primarily a result of wishful thinking, and until those opposed to the War on Terror can get a case like this through the court system without getting it reversed, that is all they have for their claim that it is illegal - wishful thinking.

No, Alpha, you obviously don't get it about evidence at all. If any of the people who are being wiretapped were charged with, say, conspiracy, and the wiretapping turned out not to have occurred with full due process, then evidence obtained by wiretapping would be inadmissible in court proceedings.

That and only that has ever been the issue with government-intercepted communications.

When did you become the arbiter what may be "the issue with government-intercepted communications"? Many people would disagree with you, my Lord.

For example, some might say that the government is acting "unconstitutional, violating rights to privacy and free speech and the separation of powers." Oh, that's what the plaintiffs said. (Maybe they should have checked with you first, you should contact them).

Are you saying the plaintiffs in the case "were charged with, say, conspiracy?" Please show that evidence.

Yachira schowcases conservative thought processes: That's right MoronLiberal, Karl Rove is listening in to you and your friends talking about your gay lovers, lattés, and Ted Kennedy costume parties at this very moment.

You see, there is no logic there. Nothing of substance. It's just sheer denial dripped in derision. Can you provide evidence that the Bushies have not abused this power?

An internal FBI audit has found that the agency violated rules more than 1,000 times while collecting data on domestic phone calls, e-mails and financial transactions in recent years, The Washington Post reported on Thursday.

It is odd to see so many conservatives espousing so much unfounded trust in the government. Things sure have changed!

Alright, Alpha Liberal: only because you are so far afield, I will explain it to you:

These plaintiffs have not been charged with a crime. That's one critical reason why they have no standing.

Let us suppose that some plaintiff is charged with a crime. (At this time, I urge you to consult a dictionary and look up "suppose.") A plaintiff charged with a crime would have a case that evidence was collected without due process and, as such, is not admissible. Thus, prosecutors would have a harder time proving up for conviction.

And, please, humor me: what does Karl Rove have to do with any of this? I note here that it is always our moonbat left who drags the man into the conversation.

That's right MoronLiberal, Karl Rove is listening in to you and your friends talking about your gay lovers, lattés, and Ted Kennedy costume parties at this very moment. Sweet Mary Jane...grow up!

Heh. And isn't it ironic? These are the same people who had no problem with Clinton campaign officials browsing through 900 FBI files of the opposition party. Situational ethics of the Left, as usual. Now, all-of-a-sudden, we're supposed to believe they are genuinely concerned about the 4th ammendment? Yah right. They only care about the NSA/FISA contraversy as a means to score cheap political shots.

Doyle, Congress has no plenary power to enact laws. In order for an act of Congress to be a law, it must first deal with an area within Congress's granted powers; otherwise it is not a law, but an unconstitutional act.

Accordingly, when I wrote "purported", I mean that Congress went through the proper procedural mechanisms for passing a law, but I did not grant that it is within the scope of the powers of Congress to pass such a law.

So, my question to you: What power of Congress allows it to prevent the Executive Branch from exercising its Supreme Court-established Constitutional right to engage in wiretaps without a warrant?

Thanks (not) for the condescension. I got all that, understand it even without your post.

I still say there are more issues than as you would like to so narrowly define. But I understand how you would like to squelch discussion of those other issues as they do not reflect very well on your political party.

I think we all have standing when it comes to secret, unconstitutional government surveillance.

"We are deeply disappointed by today's decision that insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails. As a result of today's decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance.

"It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful.

"We are currently reviewing all of our legal options, including taking this challenge to the U.S. Supreme Court. In the meantime it is now more important than ever for Congress to engage in meaningful oversight."

TPM reminds us , via Senator Leahy, that the Administration is also resisting Congressional oversight of their warrantless surveillance program. So, there's no recourse in the courts, unless you can prove you've been spied upon. And, Congressional oversight is rejected by the Administration.

So, again, the American system of checks and balances is undermined by a corrupt regime.

“The Court’s decision is a disappointing one that was not made on the merits of the case, yet closed the courthouse doors to resolving it. I hope the Bush Administration will finally provide the information requested by Congress regarding the constitutional and legal questions about this program so that those of us who represent the American people can get to the bottom of what happened and why. There is a dark cloud over the White House’s warrantless wiretapping program, and a full response to the outstanding subpoena from the Senate Judiciary Committee by this Administration would be a good start to clearing the air and moving forward in ways that allow us to better protect against terrorists while honoring the rule of law and the liberties of law-abiding Americans.”

Could someone explain to me why many people who purport to rely on logic and reason, then turn around and want their debating opponents to prove a negative; eg: "Can you provide evidence that the Bushies have not abused this power?"

The guy called me a moron, as so many of asshole con's do here. I returned the favor, though I shouldn't have. Watch Althouse will probably delete my comment, but not theirs.

I don't have proof, yet, that the Bush Administration has abused the program this way. Again, it's a secret government. Congress doesn't even know what they are doing, how should I? Or you?

But we do know that the Bush Administration has been willing to pervert the Justice Dept to send Democrats to jail on trumped up charges if it suits their political agenda. That, alone, should sound alarm bells for any other public authority they wield.

You do realize that this administration that you are accusing of all these horrible acts and motivations, is going to quietly pack up and walk away in 18 months, even if they have to turn the Whitehouse over to a Democrat.

You're wasting your time. These goons don't give a rat's ass who is getting taped, surveilled, imprisoned, beat, commuted or pardoned. As long is it's in pursuit of "teh scary terrorists" it's all good to them.

And always remember, they didn't leave the left - "the Left" left them.

Complex case - three judges, three opinions. Expect a petition for a rehearing en banc. ;)

Doyle said..."The standing issue is a big one in getting secret government surveillance adjudicated in the courts... precisely because it's hard to establish you've been surveilled or that the surveillance has harmed you. Nonetheless, electronic surveillance of Americans without a warrant is illegal, and needs to be stopped as soon as possible."

Right, but just as I've argued in the establishment clause setting, it's important to emphasize that just because something is important doesn't mean that a specific litigant has standing to challenge it, and it doesn't necessarily follow that someone must have standing: it's possible that a program could violate the constitution, yet the power of judicial review couldn't be sprung into action as a remedy because no one would have standing.

Something from Barry Goldwater's book that's stuck with me is the observation that there is a widely-held but mistaken view of the Constitution, viz. that it is virtually meaningless: "if a job has to be done to meet the needs of the people, and no one else can do it, then it is a proper function of the federal government." Goldwater, The Conscience of a Conservative 9 (1990). In other words, under this view of matters, the need to act creates the power to act (and it goes without saying that I reject this view). I think there's also a similarly-reasoned position taken by some that if there is a program that violates the constitution, and if you can't stop that program through the democratic process, then shutting it down is a proper function of the federal judiciary, and thus, standing doctrine should never permit a situation where no one has standing, thus the federal courts can't be brought into play against a given action. I don't agree with this view either. If no one can establish standing to shut down the NSA programs, gee, I guess you're just going to have to go back to the old-fashioned approach of winning elections. Not every problem has a judicial remedy, or needs one.

I never said anyone was listening to MY phone calls.. You imagined that.Listening to phone calls of various powerful Democratic leaders, campaigns, etc?You bet.

I can't tell if someone is trying to relive Watergate here, or is actually alleging that a NSA surveillance program that is limited to foreign and international communications where one party is al Qaeda, et al. has been extended to purely domestic communications between Democratic party leaders and others.

That is, unless the suggestion is that the Democratic party leaders in question are actually communicating with al Qaeda, et al. While that is almost plausible, given some of the apparent coordination between Reid, Pelosi, and ben Laden, I will suggest that if there really is coordination there, that warrants are being obtained, based on the pronouncements of the AG, et al.

Glen Greenwald, sub nom. gail grimmel, said..."Anyways, this Judge [sic. - i.e. the 6th circuit panel] also found the program illegal, but reversed based on standing grounds."

And Sgt.Ted said:"[the defenses of the program that Ann thinks are so serious are actually ridiculous and wholly un-American?] Not according to the 6th Circuit."

Neither of these are accurate. Dismissal of a case for want of standing is necessarily agonostic on the merits.

AlphaLiberal said..."[I]f I understand the logic from the Freedom from Religion case, being a taxpayer and citizen is not sufficient standing."

That being a taxpayer doesn't confer standing is the ruling from Frothingham; Hein? - "the Freedom from Religion case" - merely continues the courts' refusal to expand the Flast exception to that rule. FYI.

Anna Diggs Taylor had the brains and judicial temperment of that Dry Cleaning Judge.

Luckily she will take herself and her Carter hiring preference quota with her quite soon. (Old biddy is 75).

Alpha Liberal - The American system of government is based on the rule of law, not the rule of men. We're not supposed to "take their word for it."

Hardly. I understand your love of an imperial, liberal and activist judiciary that can bypass the democratic process and elected representatives and push progressive agenda down America's throat. Even when new "rights" like abortion and gay marriage found nowhere in the Constitution or law are magically "found" by reading between the lines. Law is simply social policy. Law, bureaucratic decrees are only credible if it has a foundation in the Will of The People and Their Representatives. Until the 1970s, that was pretty much how America worked.

In New York, 3 million people flipped the "authorities" the bird on July 4th and set off illegal fireworks. 700,000 people in New York get around absurdly high Nanny State taxes by buying cigarettes from Hezbollah and Dominican cigarette smuggling groups. And not to get into cell phone rule flouting and people that obsess about if they are violating the right laws needed to survive in business compared to their law-breaking competitors that have decided to blow off the worst laws and regulations.

People clearly have an eroding respect for all laws - and it is the fault of widespread "pay to play" corruption, nanny state legislators, petty tyrant bureaucrats, and judges like Quota filler Anna Taylor who confuse interpreting law with creating it.

Last I looked, the Constitution starts with "We The People", not "We the Sovereign Lawyers, Judges, and Legislators." And We the People create the laws and institutions we deem best.

This isn't a place where the Sanhedrin reign over all as the final word and only they dictate laws the masses must obey. Or the Central Party Committee rendering Diktats.

I stand by all my earlier writing on the subject, which was about standing doctrine and the failure of the district judge to do a serious analysis of the causation and redress prongs and rushing headlong to the case on the merits. The NYT op-ed was a pretty basic civics lesson that I originally said wasn't worth writing because it's such an obvious well-known point about separation of powers. The reaction to the op-ed has proved to me that the editor who told me the lesson still needing teaching was right. Standing doctrine limits judges to their proper role, and when they fail to take it seriously so they can tell some other branch of govt that it has exceeded its role, they are plainly hypocrits and they undermine the power of the judiciary. That is my point, and none of my critics have touched me on that.

Greenwald's point was about Rule 56 and the defendant's failure to come forward with contravening evidence (because it stood on the state secret privilege). On that Judge Batchelder wrote:

"As this case was decided on the government’s motion for summary judgment, the plaintiffs “must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of the summary judgment motion will be taken to be true.” Id. (quoting Fed. R. Civ. P. 56(e)). Applying my formulation of the standing requirements, the plaintiffs have failed to meet this burden because there is no evidence in the record that any of the plaintiffs are personally subject to the TSP. Judge Gilman frequently refers to the attorney-plaintiffs’ allegations, (Gilman Op. 44, 47, 48), and concludes that the “attorney-plaintiffs have alleged a[] . . . concrete and particularized injury,” (Gilman Op. 47). OnNos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al. Page 39 summary judgment, however, the plaintiffs’ mere allegations are insufficient, and although the publicly admitted information about the TSP “supports” them, (Gilman Op. 48), it does not satisfy the plaintiffs’ burden. In applying his formulation of the standing requirement, the reasonableness of plaintiffs’ fear, Judge Gilman concludes that “[t]he likelihood that [the plaintiff in Lyons] would again find himself in a chokehold by the Los Angeles police seems to me far more remote than the ongoing concern of the attorney-plaintiffs here that their telephone or email communications will be intercepted by the TSP.” (Gilman Op. 45-46.) Unfortunately for the plaintiffs’ position, besides Judge Gilman’s subjective assessment, there is no evidence as to the likelihood the plaintiffs will be surveilled for this court to consider on summary judgment."

Ann said..."That is my point, and none of my critics have touched me on that."

A point underlined by the inability of many of those critics to recognize that your line "Why should the judicial view prevail over the president’s?" is a rhetorical question introducing the following text, rather than a freestanding attack on the legitimacy of judicial review. Most of your critics for that piece, to my recollection, inexplicably read it the latter way.

Ann - it's vital to stress that federalism and standing are vertical and horizontal components of the separation of powers, which makes it all the more ironic that the people who most stringently criticize the Bush administration for running roughshod over the separation of powers are usually the people most interested in SCRAPping standing requirements to facilitate public law litigation and least interested in federalism (in the sense of protecting an independent scope of state action and providing meaningful restrictions on the power of Congress).

You are obviously the expert on standing here. I think that you weren't surprised that the lower court judge was reversed on those grounds, given your previous criticisms of her opinion. But other than that, was there anything really surprising here?

I wasn't surprised at the standing results, but then again, I don't have nearly your depth of understanding of this area of the law.

Forget about analyzing the opinions; just look at the political affiliations or who appointed the judges and you the outcome of this case can be determined very easily. The rule of law means nothing to Democrat-appointed judges.

To the conservatives here: When I said "you bet" taping to of Dems, i meant to say it is likely. I was speaking of my expectation, my hunch, my assertion. I didn't refer to a study or finding from any investigatory committee or some secret tip.

Again, we have a secret government, whose secrecy is protected by the courts, and we citizens have to work with what we have.

I base this speculation on the well-document partisan influence over prosecution decisions at DOJ, the politicization of agencies as exampled by Rove's powerpoint at GSA,and John Diulio (sp??) comment I provided above. Also, Nixon's practice of taping and surveilling political critics. Also, the strong opposition to sharing information with Congress about what they are doing.

The expectation that the Bush-Cheney Administration would abuse surveillance powers is well-founded. (There's more I could write but let's get serous, this is a comment section).

The thing I don't understand is why you guys believe the Bush Administration, esp when they say they only tape domestic calls when a "terrorist" is on the other end.

Why do you believe them? Because he's the president? Because he's a Republican? Because...? You seem to prefer to take Bush's words than have laws in place, have consideration of whether the Pres is following the law, or have any oversight or balance.

I honestly do not understand this. I don't think conservatives want a police state, in name at least. But you're supporting it's establishment in fact. Can you at least explain why?

Here's a key point, as far as I got:"Yesterday's ruling (.pdf) had absolutely nothing to do with the merits of the case -- i.e., whether the NSA program is illegal or not -- but instead rested only on the narrow, technical (though important) issue of whether the particular plaintiffs in this case are entitled to sue over the warrantless eavesdropping program (two of the three judges concluded that they are not)."

As far as Ann's criticisms over opinion writing style, she might want to address the importance of that issue versus the other issues swirling around the case. I think it's style over substance (to the extent I can maintain interest long enough to read it).

As I said in the NYT op-ed the standing question is basic to the judge's constitutional power. A judge that doesn't take that seriously isn't taking constitutional limitations seriously and shouldn't be trusted to make decisions on the subject. The idea that the limitations are for the other branches is the ultimate judicial hypocrisy. It's no mere technicality.

Just remembered another key piece of evidence warranting concern over likely Bush-Cheney abuse of the warrantless wiretapping program.

We learned in mid-June that the National Security letters have been abused. As I recall upwards of 1,000 of these were wrongly used. Of course we don't know that that was for partisan use or not, as far as I know.

So when they say "just trust us," I decline. Too bad the courts are no use.

I know I haven't written about Gilman's opinion on the applicability of the statutes and the lack of inherent presidential authority to run free of the statutes. These are difficult questions, this post is way too long, and Saturday is begging for my attention.

In other words: I need to read what respected attorneys and law professors write before I post. I don't want to get my rear-end handed to me like last time.

Rather interesting discussion here. LOng time reader, first time commenter. Just wanted to respond to a couple of things. I think it was Steven who said that Congress had no authority to limit the President's Art. II power. I'm going to have to disagree. What about Congress's Art. I, Sec. 8 powers? (Laws governing capture on land and water; the conduct of the military, etc)

Cedarford: The idea is for all three branches to work together to serve the will of the people. The thing is, things get messed up when ideologues(from both sides) impose their expectations on various branches.

Simon said:

think there's also a similarly-reasoned position taken by some that if there is a program that violates the constitution, and if you can't stop that program through the democratic process, then shutting it down is a proper function of the federal judiciary, and thus, standing doctrine should never permit a situation where no one has standing, thus the federal courts can't be brought into play against a given action. I don't agree with this view either. If no one can establish standing to shut down the NSA programs, gee, I guess you're just going to have to go back to the old-fashioned approach of winning elections. Not every problem has a judicial remedy, or needs one.

Doesn't the judiciary have the duty to overturn laws that are unconstitutional? Unless I've read you wrong, it seems that you're arguing that if standing cannot be established, we should leave it up to elections? I think I've got this whole standing doctrine thing confused.

The difficulty is that the federal courts, which have massive, really quite unbelievably broad power, are constrained in the exercise of that power by the requirement that this power cannot act except to redress the injury presented by a lawsuit properly before it. As Ann's put it before, to constrain that authority, Article III requires "a context to provide an appropriate occasion for saying the law: judges say the law because they have to in order to resolve a specific dispute between parties." Althouse, Saying What Rights Are - In and Out of Context, 1991 Wis. L. Rev. 929, 940.

Courts can't simply waive standing: before proceding to the merits (the case can be disposed of on some other threshold question without discussing standing, see Arizonans for Official English v. Arizona, 520 U.S. 43, 66—67 (1997); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578 (1999); Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping. Corp., 127 S.Ct. 1184 (2007)), the court must consider whether these plaintiffs have standing to raise these questions. This is so important that it applies even if no litigant raises the question: because standing is a jurisdictional prerequisite not an affirmative defense, Federal courts have an obligation to assure themselves that litigants have standing, even if defendants fail to press the point. School Cases, 551 U.S. __ (WL 1836531) (2007) ("[petitioner] does not challenge our jurisdiction, but we are nonetheless obliged to ensure that it exists"); Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) ("[federal] courts, including this Court, have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party"); Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94, 101-2 ("[w]ithout jurisdiction the court cannot proceed at all in any cause ... For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires").

The upshot is that - as I said in my opening argument, linked above, and as Judge Batchelder's opinion in the instant case also affirms, lead op. at 23-6 - plaintiffs must have standing, and this analysis doesn't wilt under a "if not these plaintiffs then which" argument. As I said last weel, the goal of the standing inquiry isn't to discover who has standing to litigate clause X, it's a case-specific inquiry that determines if this litigant is entitled to have a federal court resolve his grievance.

To some extent you're absolutely correct that the judiciary has "the duty to overturn laws that are unconstitutional." Indeed, the duty to do so is a frequently-overlooked point in the famous aphorism from Marbury v. Madison - "[i]t is emphatically the province and duty of the judicial department to say what the law is." 5 U.S. at 177. But what is the source of that power and duty? As Judge Easterbrook put it, "our Constitution lacks a Judicial Review Clause. The reason why judges are entitled to make constitutional decisions is that the Constitution is real law. That's Marbury's central point. A written constitution creates a hierarchy of legal rules; and when the Constitution clashes with an ordinary law, the Constitution prevails." Easterbrook, Foreign Sources and the Constitution, 30 Harv. J. of L. & P.P. 223, 226 (2006) (footnote omitted; emphasis in original).

In short, to say that the judiciary has a duty to overturn unconstitutional laws is correct, but that duty is easily misunderstood: it is a duty to prefer the Constitution over contrary laws and actions in deciding the case at bar, not a free-roaming license to vindicate the Constitution. The power of judicial review is necessarily tied to the power to decide cases and controversies. That awesome power can only come into play when the courts are presented with a genuine case or controversy - precisely the prerequisite that standing doctrine serves to ensure. While this may seem a semantic distinction only, I'm not affirmatively arguing that "if standing cannot be established, we should leave it up to elections," I'm saying that if standing cannot be established for these litigants, the courts have no power to act, and if standing cannot be established for any litigants, then the only remedy available is the ballot box.

For those of us unclean souls who lack legal education and training, may I request that those offering legal opinions identify themselves as JDs or members of a bar in good standing, so I can separate the question of what the law IS versus what people think it is or wish it to be?

Thanks in advance.

Hello Roger,

One of the JD-possessing souls (though I'm not sure I'm still in possession of my soul, as I believe it's been sent out as collateral to the student loan people, but anyway...) and a bar member over here.

I'm sorry to be the one that tells you there is no Santa Claus, but sadly, simply having a JD does not provide many lawyers with the ability to distinguish between what the law is and what they would like the law to be. It's almost as if lawyers were... human.

That's where the decision is leading. It's not like a lawyer and insurance company would screen you to deny a job for previous conditions based on such info? It isn't like he'd share it with business at taxpayer expense so they can assimilate info and turn the gov't into a defacto marketing branch and help them cut costs of hiring white collar payroll?

It's certain they do not put additional scrutiny on people with "D" next to their voting registration, including prosecutors and judges?

Nothing to see here, move along. That is, if you have your papers with you. You can verify that you are citizen?